March 2020 Bar Bulletin
By Jacob Kuykendall
“I lived on the fringes of society. Since that time I have been deemed moral for the purpose of practicing law, but denied jobs based on my criminal record. I have deemed worthy enough to serve the federal government and work for the Department of Energy in Washington DC, but couldn’t rent an apartment in the DC area because of my criminal record.” Sarai Cook, testifying in support of the Clean Slate Act.
The issues that Ms. Jouravleva’s article bring up about living with a criminal conviction might be helped by legislation currently working its way through the Washington Legislature. House Bill 2793, The Clean Slate Act, aims to make this process automatic for qualifying convictions and to open up the opportunity to vacate convictions to more than just those people with the money to hire an attorney or the lucky few who can find a pro bono attorney.
The mission of the King County Bar Association states our goal is, in part, to work with the judiciary to achieve equity and accessibility in the administration of justice and to benefit the community through public service and engagement with public policy. The ways in which a record of a criminal conviction can forever derail someone’s ability to find employment or housing directly invokes our association’s mission to achieve equity and accessibility to justice. The legislature, having created this process for people to rehabilitate themselves after years outside the justice system, is only accessible to those with the money or the resources to navigate a byzantine legal process. I see this every day in the Records Project, as clients sometimes in their 70s or 80s, are being discriminated against because of a misdemeanor from when they were barely adults.
Because of my work in the Records Project, I was asked to testify in support of the Bill, and give my perspective as a practitioner dealing with the day to day process of vacating convictions. What I told the assembled committed on public safety is this: The current process for vacating a criminal conviction is messy and slow. In King County, no two Courts process motions to vacate in the same way, and in some of the Courts, different Judges may treat identical motions with different procedures. Many Courts are unfamiliar with the process, and the right to vacate sits in an awkward place procedurally because they must be heard by the original sentencing Court. When the Judge has long since retired, and the Court is already at capacity dealing with “active” cases, is it any wonder that post-conviction motions are deprioritized?
To make matters worse, the broad and often complicated history of criminal law hamstrings the Legislature’s ability to encompass a set of procedures in a single bill, and instead it is left to the Courts and, more unfortunately, the individual citizen’s effected, to try and navigate the many issues left unsolved by the procedure. For example, in order to be eligible to vacate a conviction, an individual must have completed the obligations of their sentence a number of years ago, to demonstrate to the Court that they are not recidivist. But for misdemeanor convictions that occurred twenty or thirty years ago, the Courts often have destroyed the case files, leaving a short and sometimes spotty docket as the only evidence that someone completed their sentence. Likewise, the eligibility requirements are set by the severity of the conviction, with class A felonies (the most serious) ineligible to vacate and class B and C felonies eligible to vacate with a waiting time based on the severity of the classification. What then are individuals to do when a review of their conviction shows that fifteen years ago they were convicted of a drug possession felony listed only as “unclassified.” The nuances of criminal law and the messiness of a new legal process has snatched access to vacating convictions from the hands of the people who need it most, the marginalized people who were most likely to suffer from convictions and the never-ending consequences that can flow from them.
The Clean Slate Act is meant to alleviate these issues, and put the process of vacating convictions in the hands of the Courts, instead of individual litigants. If passed, the law would set out a period for the Administrative Office of the Courts to build a system for automating the vacation of convictions. They would search the court records for eligible convictions, and then automatically schedule an administrative hearing to vacate those found eligible. Only when objected to by a prosecuting attorney would that administrative hearing turn into a full hearing. Otherwise, the parties would receive notice of when the conviction would be vacated. Most people would just receive a notice that their conviction was to be vacated on a set date.
This would be benefit the individuals with convictions of course, but it would also prove invaluable to the Courts, which can be inundated with the scheduling of hearings and motions to vacate for convictions they would prefer to wave through the process. Done well, this would benefit judicial efficiency, provide individuals with less barriers to reentry, and open up employment options for thousands of people within the state. This is directly in line with our mission as an association and I hope for all of our sakes that HB 2793 passes into law.